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Passaic Valley Sewerage Commissioners v. United States Department of Labor and Robert Reich

argued: January 7, 1993.


On Petition for Review of a Final Order from the United States Department of Labor (0090-1: 85-WPC-2).

Before: Mansmann and Nygaard, Circuit Judges, and Dalzell, District Judge.*fn*

Author: Mansmann


MANSMANN, Circuit Judge.

The Passaic Valley Sewerage Commissioners petition for a review of a Final Order of the Secretary of Labor*fn1 which set aside a Recommended Decision and Order of the Administrative Law Judge, and held the PVSC liable in equity and for damages for the wrongful discharge of an employee under the Federal Water Pollution Control Act's "whistle-blower" employee protection provision.

The primary issues before us are whether the employee's activity, which consisted of his repeated intracorporate complaints regarding the PVSC's operating practices, is protected under the whistle-blower provision, and if so, whether his employment termination was in retaliation for his pattern of complaints so as to implicate the PVSC under that statute. We hold that the administrative interpretation of the statute as being protective of this employee's intracorporate complaints comports with the broad remedial purpose of the statute and is hence permissible. Because the Secretary's finding of retaliatory employment termination is supported by substantial evidence, we will affirm the Secretary's remedial orders.


The Passaic Valley Sewerage Commissioners, a corporate and political organization under New Jersey state law,*fn2 successfully operate a modern secondary sewage treatment plant.*fn3 Federal appropriations pursuant to an Environmental Protection

Agency allotment under § 202 of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (commonly known as the Clean Water Act),*fn4 provided 75% of the plant's construction costs, bringing the PVSC operations under the Clean Water Act regulations which condition federal funding.

The Clean Water Act requires recipients of federal funds to adopt a system of billing or customer user charges which "assures that each recipient of waste treatment services within the applicant's jurisdiction . . . will pay its proportionate share . . . of the costs of operation and maintenance (including replacement) of any waste treatment services provided by the applicant." 33 U.S.C. § 1284(b)(1)(A). In compliance with this requirement, the PVSC instituted an ad valorem user charge system,*fn5 purportedly approved by the EPA after numerous public hearings, whereby the PVSC charged users on the basis of the volume of waste water discharged to the system and the concentration of dissolved and undissolved solids to be treated. 40 C.F.R. § 35.929-1(a). The PVSC implements its user charge system via customer self-monitoring, which requires that each industrial user sample, monitor and report on its waste water discharges to the PVSC Treatment Works, subject to the PVSC's periodic compliance checks. The self-monitoring process requires that in addition to its regular sampling procedure, industrial users prepare a daily split sample, making one sample available to the PVSC to collect and perform its own evaluation of the accuracy of the self-monitored data.

In August of 1981, Joseph Guttman, the PVSC's Chief of Laboratory and Stream Pollution Control, became highly critical of the split-sampling procedure. He remained critical of the procedure for the duration of his tenure at the PVSC. The gist of Guttman's complaints was that the system was allegedly inordinately expensive, inefficient, scientifically unreliable and in violation of the Clean Water Act user charge provisions. His initial written complaint was conveyed in a memorandum to his superior, the PVSC's Chief Engineer Ricci, and included a recommendation for increased PVSC oversight of sample preparation. The following year Guttman repeated his complaints in writing to the Chief of Industrial Waste D'Ascensio. Again that year, Guttman wrote to Executive Director Perrapato expressing his dissatisfaction and requesting an increased supervisory role for himself. Perrapato apprised all of the individual PVS commissioners of Guttman's concerns, and obtained, from in-house legal counsel, recommendations on the issues Guttman raised. When counsel assured the PVSC that full compliance with the Clean Water Act was maintained, the PVSC considered the matter closed. With the commissioners' approval, Perrapato assigned D'Ascensio to supervise Guttman.

The working relationship between Guttman and D'Ascensio was, from the start, extremely volatile and their mutual antipathy became exacerbated when Guttman began unilaterally to discard large numbers of split samples collected by the PVSC. While Guttman insisted that allegedly poor or unreliable quality and an harassingly excessive quantity of these samples justified this practice, D'Ascensio characterized the practice as a deliberate attempt to sabotage the user charge system, prompting D'Ascensio to prepare a highly critical evaluation of Guttman's performance, which implied the possibility of imminent negative impact on Guttman's employment. In the ensuing weeks, Guttman prepared a memorandum which he circulated to all the PVS commissioners, generally alleging Clean Water Act violations against the PVSC's user charge verification system. In response to in-house counsel's request for greater legal and factual specificity in the allegations, Guttman issued a second memorandum citing "204(b)(1)(A)" [33 U.S.C. § 1284(b)(1)(A)] of the Clean Water Act.

Although in-house counsel rebutted each of Guttman's allegations, the PVSC afforded Guttman the opportunity to brief the panel of commissioners. On the basis of that hearing and on the advice of in-house counsel, the commissioners found Guttman's claims to be without merit. In the course of the hearing, Guttman stated that in a telephone Discussion with Ambrosio, the PVSC in-house counsel, Guttman threatened to report his claim directly to the EPA. Ambrosio did not recollect this alleged threat and testified that, under the circumstances, he would not have taken the alleged threat seriously had it occurred.

Upon these occurrences and a determination that Guttman's behavior jeopardized the PVSC's credibility with its customers, D'Ascensio recommended termination of Guttman's employment. Perrapato immediately assigned Personnel Managers Santamassino and Borgatti to mediate the dispute between Guttman and D'Ascensio. Approximately six months later, pursuant to Santamassino's recommendation which Perrapato transmitted to the commissioners, the PVSC eliminated Guttman's position of Chief of Laboratory as no longer necessary after a corporate reorganization in which four departments were collapsed into three. Guttman became the only Chief terminated, effective November 10, 1984. The termination decision was purportedly ...

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